Several news outlets report that EPA career staff recommended that Administrator Stephen Johnson approve California's waiver request. According to these accounts, the "unanimous opinion" of EPA legal and technical staff supported the waiver request. Does this matter? Some bloggers think so. I don't. Agency expertise is important, but it is not the end-all-be-all of agency decision-making, and it is no substitute for politically accountable policy decisions by political appointees.

If EPA staff argued that the unambiguous language of the Clean Air Act obligated the EPA to grant California's waiver request, I think they were simply wrong on the merits, for the reasons I have outlined in prior posts. I think there is some ambiguity in the relevant Clean Air Act language, which gave the agency some wiggle room, but (if anything) the language supports Johnson's decision to deny the waiver. In my view, neither Section 209 of the Act or the EPA's prior waiver decisions dictated a different result.

If the EPA staff were arguing that, in their view, the agency should grant the waiver either because (a) their preferred interpretation of the relevant statutory language required granting the waiver, or (b) they believed granting the waiver was better environmental policy, then there was nothing improper with Johnson adopting a different conclusion. Insofar as the Clean Air Act grants the EPA some discretion in how to interpret the Act's requirements or whether to grant the waiver request, it vests the ultimate decision-making authority in the hands of political appointees, like Johnson, not career staff. In such circumstances, the policy views of EPA career staff are only relevant to the extent an Administrator wishes to take their counsel. If we disagree with the Administrator's conclusion, it is because we prefer a different policy, not because the Administrator failed to follow the lead of agency staff.

Community Rights Counsel's Tim Dowling suggests the opposition of EPA career staff should influence judicial review of the case, and lessen the degree of deference a reviewing court shows the EPA's decision. Dowling writes:

the whole concept of deference is rooted in the idea that courts will defer to the technical expertise of the agency. Here, Johnson reportedly made his decision in the face of a contrary, unanimous recommendation by his technical and legal staff. So there's a genuine question whether the usual justifications for deference obtain in this case.

I disagree. Under Chevron and its progeny, the legal argument for deference is not agency expertise, but the delegation of policy-making discretion to administrative agencies. This rationale should be unaffected by the views of agency staff.

Under Chevron, where the relevant statutory language is clear, the statute controls, period. Where a statute is ambiguous, however, courts are to defer to the implementing agency's any reasonable interpretation offered by the implementing agency. While the existence of agency expertise may be the reason Congress chose to delegate such authority to administrative agencies, for purposes of judicial review, what matters is whether there was a delegation of interpretive authority to an administrative agency. And, as Chevron's progeny make quite explicit, where statutory language is ambiguous, courts are to presume that Congress sought to delegate interpretive authority to the relevant implementing agency.

One consequence of this rationale is that it is not particularly relevant whether career agency staff believe that one interpretation of ambiguous statutory language is preferable to another. So long as the relevant statutory language is ambiguous, and both interpretations are permissible constructions of the relevant language, the head of the agency is free to prefer either interpretation, for whatever reason, and Chevron deference is owed. Therefore, so long as the EPA's interpretation of the Clean Air Act was based upon a permissible construction of Section 209 (the waiver provision), a reviewing court should provide full Chevron deference to the EPA's interpretation, irrespective of the views offered by agency staff.